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P7: Late further appeal
Reason for time limits
“We do accept that time bar provisions are created for a reason and that is that they provide finality and certainty and that is not a matter that should be lightly disregarded.” (North Berwrick Golf Club v. HMRC [2015] UKFTT 82 (TC), §34).
Whether the appeal is late
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Notice of appeal must contain grounds of appeal relied on
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“The letter of 6 July and enclosures did not constitute a notice of appeal because they did not include the grounds of appeal relied on by Mr Huitson which were contained in his application to the FTT and in respect of which the FTT had granted permission (see rules 23(3) and 21(4)(e) of the UT Rules).” (Huitson v. HMRC [2017] UKUT 75 (TCC), §13, Judge Sinfield).
Examples of reasonable excuses
Unaware of decision and no reason to pursue HMRC
“Since we accept that the Decision was not received by the [taxpayer] and that there was no particular reason why they should have been in contact with HMRC about this matter before 2014 we find that there is both a good explanation for the default and that that amounts to a reasonable excuse.” (North Berwick Golf Club v. HMRC [2015] UKFTT 82 (TC), §43).
Examples of unreasonable excuses
Legal research
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“But in my judgment, none of the time taken for legal research amounts to a valid excuse for delay, let alone for a delay of such severity.” (Davies v. Davies [2015] EWCA Civ 1008, §31).
Other considerations
Whether the taxpayer acted with reasonable diligence once the excuse ceased to operate
“Although the delay in this case is very long at four years and ten months it is nevertheless wholly unsurprising since the Appellant only became aware that the Decision had been issued in 2014 and they acted very promptly immediately.” (North Berwick Golf Club v. HMRC [2015] UKFTT 82 (TC), §45).
Prejudice if the extension is granted
“There is prejudice to the Government in having to meet large, unexpected claims. The government needs to plan its income and expenditure. Large unforeseen claims are disruptive of a government’s budget.” (Graham v. HMRC [2014] UKUT 75, §21).
“…even if the appeal had been lodged timeously absolutely nothing would have happened in the interim until the time the accountants wrote to HMRC in 2014 and indeed until now…the prejudice to HMRC is not nearly as serious as it might be in other circumstances.” (North Berwick Golf Club v. HMRC [2015] UKFTT 82 (TC), §50).
Prejudice if the extension is not granted
“The merits of the Appellant’s case can only take it some way but it is relevant that there is a possibility of success. We find that if we were to “shut out” the Appellant from effective litigation there would be an undoubted substantial prejudice to the Appellant and we take that finding into account in conducting our balancing exercise.” (North Berwick Golf Club v. HMRC [2015] UKFTT 82 (TC), §48).
Public interest in finality
“There is undoubtedly the issue of the policy of finality in litigation and other legal proceedings.” (North Berwick Golf Club v. HMRC [2015] UKFTT 82 (TC), §52).
Implications for other cases
“We do not consider that if we grant leave to appeal in this instance that it has any implication for any other cases…the facts here are unique.” (North Berwick Golf Club v. HMRC [2015] UKFTT 82 (TC), §53).
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Unsophisticated litigant in person
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“All that said, however, it is clear to me that the Appellant and her grandson are not sophisticated litigants in person. The Appellant herself is 90 years old. She is in fair health, according to her grandson, but reacts adversely to stress. I doubt that she has really appreciated the gravity of what is happening and I doubt that she has focussed on the very serious orders that have been made against her since the outcome of the trial before the judge. It seems to me that she may have focussed instead on the unfortunate fall-out within her family…In all these circumstances, it seems to me just and proportionate in the very exceptional circumstances of this case to grant an extension of time at least to appeal paragraph 6 of the judge's order.” (Davies v. Davies [2015] EWCA Civ 1008, §§31…32).
Failing to notify appeal to UT within 1 month of permission
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- FTT not to blame for not sending notice granting permission to representative where not properly appointed
"[21] Returning to Ms Brown’s original point (made without reliance on Rule 11) she argues that the FTT ought, given the mention of counsel’s pro bono representation in the FTT’s decisions, to have sent the grant of permission decision to her. I do not agree such omission represented a failure on the FTT’s part. The fact Rule 11 sets up a clear process for representatives coming on and off record, and distinguishes that from situations where a person, who is otherwise unrepresented, can be represented at the hearing, reflects a purpose of the rules in establishing a system which is administratively workable. That envisages the receipt of clear written forms of authorisation, not examination of the content of the FTT’s decisions to see who is referred to there and in what capacity. This is so that the FTT administration and other parties can straightforwardly determine who to send documents to, who to expect receipt of them from, and for parties and representatives to similarly know where the lines of communication with the FTT and other parties will lie. Without such due specific appointment as representative under Rule 11(4) (and as already mentioned attending as someone’s representative at the hearing would not in itself constitute such wider appointment) I cannot see what basis the FTT was obliged to send Mr Eveleigh’s grant of permission decision to someone not on record." (Eveleigh v. HMRC [2024] UKUT 436 (TCC), Judge Raghavan)
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- Extension refused even though HMRC had not assumed matter was final due to serious and significant delay
"[38] Moving on to the overall balancing exercise, the main factor operating in Mr Eveleigh’s favour is the greater prejudice to him if the time extension is refused. He will lose the opportunity to proceed with an arguable appeal that, if successful, would mean he was not liable to a large excise duty assessment with the significant personal and financial consequences that would in turn entail. That prejudice exceeds the particular prejudice to HMRC in this case where HMRC had not in fact assumed the matter was final and ought to be in a position to respond to an appeal which will turn on submissions on points of law. Nevertheless the tribunal should in considering the significance of the adverse consequences for Mr Eveleigh if the time extension is not granted, keep in perspective that his having an arguable case merely means there is a chance, not a certainty, of overturning the FTT decision and assessment. In other words it needs to be taken account that even if the time extension were granted Mr Eveleigh might still lose the appeal and remain liable for the assessment. So although the comparative greater degree of prejudice is a factor in Mr Eveleigh’s favour of some weight its weight is not to be overstated.
[39] On the other side of the balance and against Mr Eveleigh is the serious and significant delay. Taking it at its most generous to Mr Eveleigh, the duration is in the order of nine months. For all the reasons already explained that is a delay for which there is no explanation of any merit. There is also the public interest in finality, in complying with time limits, which weighs against granting the extension." (Eveleigh v. HMRC [2024] UKUT 436 (TCC), Judge Raghavan)
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Reopening finalised appeals
Lawyer’s mistake is not sufficient
“One cannot get away from the fact that this application is based on lawyers' mistakes and that the Taylor v Lawrence jurisdiction (only invented by this court in 2002 to cater for glaring injustice) is not intended to cater for such mistakes, however reasonable and understandable they may be. Law is a complicated business and mistakes will inevitably be made. Usually they will not matter because mistakes by lawyers can often be corrected or minimised by judges and mistakes by judges will be corrected by this court and this court can be corrected by the Supreme Court but once a decision becomes final, at whatever level, it must be accepted as final in the absence of exceptional circumstances. Mistakes are, regrettably, not exceptional at all.” (R (oao Nicholas) v. Upper Tribunal [2013] EWCA Civ 799, §20).